84 S.E. 855 | N.C. | 1915
This action was brought by plaintiff to recover damages of the defendant for having taken and appropriated a part of his land in the town for the purpose of opening a street. The town of Venable (now Carrboro) was incorporated by Private Laws of 1911, ch. 315. There is no provision in its charter for condemning land for streets, though there is a provision that the taxes shall be used in defraying the expenses of the town, "and in repairing streets and sidewalks and keeping them in good order." Nor is there any provision in the general law for the condemnation of land for streets by cities (533) and towns, the provision in regard to streets being substantially the same in the general law as in the charter of defendant. The first position of defendant is that the common-law remedy of trespass for the taking of property for public purposes is superseded by the statutory remedy, and for this contentions he cites numerous cases. McIntire v.R. R.,
The taking in this case was by the town, although the actual work of laying out and opening the street may have been performed by its agents or servants, who acted in pursuance of its direction. *620
As we construe the verdict, in the light of the evidence and the charge of the court, the plaintiff consented to the taking of his land, but reserved the right to just and adequate compensation for the loss and injury to him. Whether he did so or not, his present action implies such a consent on his part, and he will not be heard to assert the contrary, nor do we understand that he does so, but he is now willing to the appropriation if proper compensation is allowed. The right to a just compensation for property taken by the sovereign or by any corporation possessing a part of the sovereign power, springs from our sense of natural justice and "is a principle so salutary to the citizen, and concerns so nearly the character of the State," that this Court, in R. R. v. Davis,
(536) We have not been able to discover any error in the charge as to the damages. The court instructed the jury to consider the benefits derived by the plaintiff from the opening of the street, and in this respect gave the defendant the full advantage of any deduction on that account, as if it had the right to condemn and had proceeded regularly in doing so. The question asked the witness C. G. Cates, as to his offer to buy the lot, was competent, if at all, only to contradict him or to impeach his estimate of the value, and for this purpose it was admitted. *621
2 Lewis Em. Dom. (3 Ed.), sec. 666; Abbott's Proof of Facts (3 Ed.), p. 875; Hine v. M. R. Co.,
We have not discussed the question whether defendant was entitled to a deduction for benefits received by plaintiff from the opening of the street, as this part of the charge was favorable to defendant, and the plaintiff did not appeal. The court subtracted from the total damages, as assessed by the jury, the amount of benefits derived by the plaintiff, to wit, $164, permitting judgment only for $400, the reduced amount. The verdict seems to be fair, at least to the defendant.
No error.
Cited: Hardware Co. v. Buggy Co.,
(537)